BVA9501360 DOCKET NO. 93-08 710 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUE Entitlement to an increased disability rating for post-operative herniated nucleus pulposus at the L4-5 level with non-traumatic degenerative arthritis, currently evaluated as 40 percent disabling. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Theresa M. Catino, Associate Counsel INTRODUCTION The veteran served on active military duty from May 1972 to December 1976. A personal hearing was held at the regional office (RO) in August 1993 before a member of the Board of Veterans' Appeals (Board). At this hearing, the veteran appeared to raise the issue of entitlement to a service connection for a bowel and bladder disability (hearing transcript at 5), the issue of entitlement to service connection for a right hip disability (hearing transcript at 3,4,5,7), and the issue of whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for migraine headaches (hearing transcript at 5). These claims are not inextricably intertwined with the current appeal and are referred to the RO for appropriate action. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, in essence, that the RO committed error in denying her claim of entitlement to a disability evaluation greater than 40 percent for post-operative herniated nucleus pulposus at the L4-5 level with non-traumatic degenerative arthritis. She claims that this service-connected disability is more severely disabling than currently evaluated. Specifically, she maintains that she experiences severe muscle spasm and continuous pain that radiates down her hips and legs. She admits that medication provides her some relief from muscle spasm. However, she asserts that, despite taking medication, she must frequently stand up against a wall because she cannot sit in a chair for very long. She also claims that when her diseased disc moves out of place, she becomes numb from the middle of her stomach all the way down her left leg. Consequently, she contends that she is entitled to a disability evaluation greater than 40 percent for her service-connected back disability. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims files. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence warrants the grant of 60 percent, but no higher, for post-operative herniated nucleus pulposus at the L4-5 level with non-traumatic degenerative arthritis. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's claim has been obtained insofar as possible. 2. The back disability is manifested by complaints of pain, muscle spasm, radiculopathy, positive ankle jerk, marked degenerative changes and interspace narrowing at the L4-L5 level, moderate degenerative changes at the L5-S1 level, numbness, decreased pinprick sensation in the lower extremities, and pain on straight leg raising that are productive of pronounced impairment. 3. Post-operative herniated nucleus pulposus at the L4-5 level with non-traumatic degenerative arthritis does not present an exceptional or unusual disability picture. CONCLUSION OF LAW The criteria for a 60 percent disability evaluation, but no higher, for post-operative herniated nucleus pulposus at the L4-5 level with non-traumatic degenerative arthritis are met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 3.321, Part 4, § 4.71a, Codes 5285, 5286, and 5293 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran's claim is well-grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). That is, the Board finds that the veteran has presented a claim which is plausible. The Board is also satisfied that all relevant facts have been properly developed. No further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet.App. 78 (1990); Littke v. Derwinski, 1 Vet.App. 90 (1990). In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. §§ 4.1 and 4.2 (1993). In a rating decision of March 1978, the RO granted the veteran service connection for non-traumatic degenerative arthritis of the lumbar spine and rated this disability as 0 percent, effective December 1976 and as 10 percent disabling, effective March 1977. In December 1978, the RO granted the veteran a 20 percent evaluation for this service-connected disability, effective from August 1978, based on evidence of limitation of motion of the lumbar spine. In May 1981, the veteran underwent a laminectomy and diskectomy for central disk protrusion at L4-5. In March 1984, the Board, on reconsideration of its October 1982 decision denying the veteran's claim of entitlement to service connection for a herniated nucleus pulposus, granted this claim. In an April 1984 rating decision, the RO redefined the veteran's service-connected back disability as post-operative herniated nucleus pulposus at the L4-5 level with non-traumatic degenerative arthritis of the lumbar spine but confirmed the 20 percent disability rating. This rating remained in effect until a May 1985 rating decision, when the RO granted a 40 percent disability evaluation for the service-connected back disability, effective from September 1984, based on evidence of severe limitation of motion, an inability to do straight leg raising testing because of pain and complaints of constant pain of the low back. Disability evaluations are administered under a Schedule for Rating Disabilities which is found in 38 C.F.R. Part 4 (1993) and is designed to compensate a veteran for average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 1991). Separate diagnostic codes identify the various disabilities. Id. Although the evaluation of a service-connected disability requires a review of the veteran's medical history with regard to that disorder, the primary concern in a claim for an increased evaluation for a service-connected disability is the present level of disability. The United States Court of Veterans Appeal (Court) has recently held that, where entitlement to compensation has already been established, and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet.App. 55, 58 (1994). With these regulations and this Court decision in mind, the Board will address the issue of the evaluation of the present level of disability resulting from the veteran's service-connected post-operative herniated nucleus pulposus at the L4-5 level with non-traumatic degenerative arthritis of the lumbar spine. This disability is presently evaluated as 40 percent disabling under Diagnostic Code 5293. Pursuant to this Code, a 40 percent disability rating is assigned when the evidence demonstrates severe intervertebral disc syndrome, with recurring attacks and intermittent relief. Evidence of pronounced intervertebral disc syndrome with little intermittent relief and with persistent symptoms compatible with sciatic neuropathy, characteristic pain, demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to the site of the diseased disc is required for the grant of a 60 percent disability evaluation. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4, § 4.71a, Code 5293 (1993). At the August 1993 personal hearing, the veteran testified that she experiences severe muscle spasm and pain which radiates down her hips and legs. Hearing transcript at 3, 5. According to the veteran's testimony, although medication provides her some relief from muscle spasm, her pain is continuous. Hearing transcript at 6. She testified that many times she has to stand up against a wall because she cannot sit in a chair for any length of time. Hearing transcript at 6. In addition, she contended that her diseased disc sometimes moves out of place, and, when this movement occurs, she becomes numb from the middle of her stomach all the way down the left leg. Hearing transcript at 3-4. A review of the medical evidence of record shows that the veteran was treated for complaints of severe low back pain in July and August 1989. A July 1989 neurosurgery evaluation resulted in diagnoses of chronic low back pain and recurrent left L5-S1 radiculopathy. Electromyograph and nerve conduction studies completed in September 1989 in response to the veteran's continued complaints of low back pain radiating to the left leg revealed evidence which was suggestive of left L4-5-S1 chronic root irritation. According to Department of Veterans Affairs (VA) Neurosurgery Clinic outpatient treatment records dated in November 1989, although no marked pain with back percussion was found, straight leg raising produced evidence of back pain radiating to the left buttock and left thigh. Ankle and knee jerk were both found to be 0,+1/0,+1, and decreased pinprick sensation was shown in the left lateral thigh. The examiner concluded that the veteran had a possible L5 nerve root compression and that she definitely had left L5-S1 radiculopathy, quadriceps weakness, and a mechanical component to her low back pain. Magnetic resonance imaging completed in December 1989 failed to find any evidence of recurrent disc herniation or epidural fibrosis at the L4-5 level. This test did show marked degenerative disc change and marked interspace narrowing at the L4-5 level as well as moderate degenerative disc change at the L5-S1 level with a small central bulge to the disc. VA neurosurgery evaluation completed in January 1990 demonstrated evidence of ankle jerk of +1/+1, knee jerk of 0,+1/0,+1, decreased pinprick sensation in the left thigh and left foot, and decreased range of motion of the lumbar spine. The diagnosis was mechanical low back pain with chronic radicular symptoms. Neurosurgery evaluation conducted in June 1990 also demonstrated evidence of ankle jerk of +1/+1, positive muscle spasm, tenderness at the L5 level, and straight leg raising of 90 degrees bilaterally with pain noted on the left side. The examining physician specifically noted that no X-rays of the veteran's back were taken at that examination due to the veteran's discomfort. The veteran was hospitalized at a VA facility in June 1991 for chronic low back pain with left lower extremity radiculopathy. Physical examination demonstrated a positive straight leg raise on the left. She had an L5 distribution decreased sensation to light touch and pin prick. A computed tomography/myelogram completed in June 1991 demonstrated no evidence of a herniated nucleus pulposus or canal stenosis. The examiner specifically noted that there was no surgical indication at that time. On discharge, she had no physical activity restrictions. At a private examination conducted by Dr. Steven Crouse in December 1992, the veteran reported that her back pain was continuous and no longer intermittent, that the pain continued to radiate primarily down the left low back to the left leg and moved occasionally to the right, and that she also continued to experience numbness in the left leg. She indicated that the only treatment she presently received was medication and chiropractic manipulations one to two times a week. Dr. Crouse noted that the computed tomography/myelogram completed in June 1991 was fairly normal. Dr. Crouse also explained that, although neurologically the veteran tended to be weak in the left lower extremity secondary to pain, there was no other significant abnormality. Straight leg raising was found to be 45 degrees on the left and 80 degrees on the right, with evidence of some low back pain. Dr. Crouse noted that, although the veteran had only five degrees of flexion in her back, she was able to get up from the examination table without too much difficulty. Dr. Crouse concluded that the veteran had moderate low back pain and that there was essentially no change in her condition since her examination in 1989. At the VA examination of the spine, which was conducted on the same day as Dr. Crouse's evaluation, the veteran reported not receiving any benefit from the lumbosacral support and "TENS" unit she had previously been given. The VA examiner noted a five centimeter well-healed scar over the L5 region. In addition, the examiner observed that, when seated, the veteran could extend both knees fully without any evidence of sciatic stretch and that reflexes were brisk and equal bilaterally. Knee and ankle jerks of the left and right lower extremities were measured at 3+. There was 15 degrees of flexion, 5 degrees of extension, left and right lateral bending at 10 degrees, and no rotation either to the left or right. In the supine position, the veteran was limited to straight leg raising on the right to 30 degrees because of back pain and on the left side to 10 degrees by back pain (which was also accompanied by a type of intention tremor and weakness). According to the examination report, the veteran had great difficulty in rolling from the supine to the prone position. The examiner noted significant tenderness to light palpation over the lower lumbar region and sacroiliac joints. X-rays of the lumbosacral spine showed a decrease in the joint space of the L4-L5 level with a vacuum phenomenon and a question of a smudging of the right sacroiliac joint. The examiner also noted the that there was electromyograph evidence of radiculopathy of the L5 nerve group. As these medical reports demonstrate, the veteran's service-connected low back disability is characterized by the veteran's complaints of pain and muscle spasm as well as a mechanical component to the chronic low back pain; also shown are recurrent left L5-S1 radiculopathy, positive ankle jerk, marked degenerative changes and interspace narrowing at the L4-L5 level, moderate degenerative changes at the L5-S1 level with a small central bulge to the disc, numbness and decreased pinprick sensation in the lower extremities (particularly the left lower extremity), and pain on straight leg raising. For a 60 percent evaluation, persistent symptoms compatible with sciatic neuropathy with characteristic pain, demonstrable muscle spasm, or other neurological findings appropriate to the site of the diseased disc with little intermittent relief are required. As noted above, several examinations demonstrate positive straight leg raising and radiculopathy. While there is some mechanical component to the veteran's low back pain, laboratory testing reveals degeneration that is consistent with the production of pain. Muscle spasm has also been revealed on physical examination. As testified to by the veteran, her symptoms have increased and are characterized by little intermittent relief. The Board thus concludes that this evidence meets the criteria required for a 60 percent disability rating. 38 C.F.R. § 4.71a, Code 5293 (1993). The veteran's back symptomatology does not satisfy the schedular criteria for a disability evaluation greater than 60 percent. To receive a 100 percent schedular rating, the evidence must show a fracture of the vertebra with cord involvement or with the requirement that the veteran be bedridden or wear long leg braces. 38 C.F.R. Part 4, § 4.71a, Code 5285 (1993). X-rays taken of the veteran's lumbosacral spine at the December 1992 VA examination specifically found no evidence of a fracture or even a dislocation of the lumbar spine. Consequently, the veteran is not entitled to a higher schedular rating under Code 5285. In addition, the veteran may also receive a 100 percent schedular rating under Code 5286 if the evidence shows complete bony fixation (ankylosis) of the spine at an unfavorable angle with marked deformity (with or without involvement of major joints). 38 C.F.R. Part 4, § 4.71a, Code 5286 (1993). Significantly, however, none of the medical evidence demonstrates ankylosis of the veteran's spine. Therefore, the veteran cannot receive a higher schedular evaluation under Code 5286. In exceptional cases where the schedular evaluations are found to be inadequate, an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities may be approved, provided the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (1993). The records in the present case do not show such an exceptional or unusual disability picture as would warrant an evaluation on an extraschedular basis. Accordingly, the Board concludes that an evaluation is not warranted on an extraschedular basis. 38 C.F.R. § 3.321(b)(1) (1993). All pertinent provisions of 38 C.F.R., Parts 3 and 4 have been considered. In particular, it is noted that 38 C.F.R. § 4.40 (1993) acknowledges the functional impairment due to pain. However, Diagnostic Code 5293 otherwise encompasses pain as characteristic of the service-connected back disorder, and the veteran's increased, 60 percent, evaluation already compensates for the associated painful motion. ORDER A 60 percent rating, but no higher, for post-operative herniated nucleus pulposus at the L4-5 level with non-traumatic degenerative arthritis is granted, subject to the law and regulations governing the award of monetary benefits. M. SABULSKY Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.